Fifth District Supervisor Josie Gonzales, left, Chairman and First District Supervisor Robert Lovingood, Vice Chairman and Fourth District Supervisor Curt Hagman and Second District Supervisor Janice Rutherford vote for their top five candidates after the San Bernardino County Board of Supervisors held interviews for the vacant 3rd District seat, formerly held by James Ramos, at the San Bernardino County Government Center in Pomona on Tuesday, December 11, 2018. (Photo by Jennifer Cappuccio Maher, Inland Valley Daily Bulletin/SCNG)

San Bernardino County is suspending its bid to fill the vacant seat for 3rd District supervisor, saying Thursday that county attorneys will assess an allegation that the hiring process has violated the state’s open meetings law.

Ruth Musser-Lopez, of Needles, argues that the county violated the Ralph M. Brown Act this week when the four sitting supervisors narrowed a pool of 48 initial applications by creating individual “top ten” lists and then comparing the names to come up with 13 candidates who would be interviewed in a public meeting on Dec. 11.

According to Musser-Lopez’ compliant, sent via email, the supervisors “cast preliminary votes secretly, without a process agreed upon by the public and without publicly disclosing the votes of the individual supervisors to the public.”

The Brown Act, which sets rules for public meetings in California, says officials in charge of filling a vacancy on any governing body must “conduct their meetings and deliberations within the public’s presence.”

After talking with candidates on Tuesday, the board narrowed the field a second time, to five finalists; Bill Emmerson, Sean Flynn, William Jahn, Rhodes Rigsby and Dawn Rowe. The plan was to talk with those five candidates at a public meeting on Thursday, before naming the new supervisor, but they postponed that meeting until next week, at the earliest, after receiving the complaint.

“As for the correspondence from Ms. Musser-Lopez, the board and the county are taking her points seriously and County Counsel is examining the board’s actions to determine if there is any merit to the claims,” said David Wert, county spokesman, via email.

“The board members want this process to be transparent and they want the public to be confident in the choice they will eventually make.”

In November, the board voted to appoint someone to the seat left vacant on Dec. 3 when former Supervisor James Ramos was elected to the 40th Assembly District.

According to the county charter, the board must fill a vacancy within 30 days or the decision goes to the Governor. The county charter also rules out a special election.

When the board submitted their choices Monday, Dec. 10, the county clerk tallied their votes to identify the 13 candidates who were interviewed. However, Wert said, the supervisors did not submit written lists, nor did the clerk record each board member’s choices.

That process was a “clear cut” violation of the Brown Act in two ways, according to David Snyder, executive director of the First Amendment Coalition, a San Rafael-based nonprofit that advocates for greater openness in government.

The Brown Act prohibits elected officials from communicating through an intermediary — in this case, the county clerk — to discuss, deliberate or take action. Additionally, the vote was taken outside of public view and it’s not clear who each supervisor selected, violating the Brown Act’s rule against secret ballots.

“That’s classically the kind of thing that should be happening in a public meeting, not behind closed doors through phone calls and emails,” Snyder said.

The board has 30 days to respond to the complaint, according to Snyder, either by pledging to fix any alleged violations (which could require an entirely new selection process) or by holding the allegedly secret meeting in public. The board also could choose to not respond to the violation and face possible litigation, Snyder said.

Musser-Lopez is asking the board to void the votes they cast on Monday and Tuesday, and allow public comment every time a new slate of candidates is proposed. She also wants the board to give all applicants an opportunity to give a speech and allow them the same amount of time provided to the “unlawful slate of 13 candidates that were improperly selected by serial voting and secret ballots.”

In a follow up email Thursday, Dec. 13, Musser-Lopez said the “illegal narrowing process” also eliminated people of color, as most of the applicants who made it to the interview process were white men.

“This is a violation of our constitutional rights to fair treatment and equal representation, is harassing and damaging, among other really sad discriminatory acts,” Musser-Lopez wrote.

During Tuesday’s meeting, she also pointed out the conservative leanings of the 13 finalists, who were mostly Republicans. Two were registered as No Party Preference and one was a Democrat.

Wert said county staff is developing a recommendation for how the board should proceed with the appointment process. That recommendation will be part of the meeting agenda for Tuesday, Dec. 18, which will be posted Friday afternoon.

Whether the county needs to hold the interviews over again, is unclear, Snyder said.

“The problem here is that the initial step in a multi-step process was done improperly,” Snyder said. “So, does that mean the whole thing has to be done over? I honestly don’t know.”